The CAFC (05-1182),
in a non-precedent ruling (silly concept) agreed in entirety with the district
court on its variety of rulings, which found all-too typical weaselly behavior
by some parties, notably false advertising and fiddling with inventorship,
though the asserted inequitable conduct was not found.

On December 5, 2003, the jury returned a verdict on the issues of
infringement, validity, inventorship, false advertising, and false
advertising damages. First, the jury found that Jumpking’s FunRing-1 product
infringed claims 1, 7, 13, and 17 of the ’845 patent and claims 5, 9, and 14
of the ’207 patent, that Hedstrom’s JumpGuard product infringed claims 1, 2,
7, 15, and 17 of the ’845 patent and claims 9 and 10 of the ‘207 patent,
that the infringement was not willful, and that the FunRing-2 product did
not infringe either the ’845 or the ’207 patent. The jury also determined
that the retailer defendants and ICON were not liable for infringement.
Second, the jury found that claims 2, 3, 11, and 12 of the ’845 patent and
claims 1, 24, 25, 31, 32, 33, and 35 of the ’207 patent were invalid because
of anticipation, and that claims 29 and 38 of the ’207 patent were invalid
because of obviousness. Third, the jury made findings of fact that Donald
Strasser was a co-inventor of the ’845 and ’207 patents and that Byron
Bertsch, a listed inventor on the patents, was not a co-inventor of the ’845
and ’207 patents. Finally, the jury found that both Jumpking and JumpSport
engaged in false advertising under the Lanham Act, but that neither party
owed damages to the other party.

The interesting portion of this ruling was whether a guy having a trampoline
in his backyard that he let others use constituted public use. It does.

We also agree with the defendants that there was no genuine issue of
material fact regarding whether the Curtis enclosure anticipated claims 16
and 40 of the ’207 patent. 35 U.S.C. § 102(b) provides that “[a] person
shall be entitled to a patent unless . . . the invention was . . . in public
use or on sale in this country, more than one year prior to the date of the
application for patent in the United States.” “We have defined ‘public
use’ as including ‘any use of [the claimed] invention by a person other than
the inventor who is under no limitation, restriction or obligation of
secrecy to the inventor.’” Lough v. Brunswick Corp., 86 F.3d 1113, 1119
(Fed. Cir. 1996) (citations omitted). Here, there is no question that
Curtis did not limit, restrict, or oblige to secrecy the persons in the
neighborhood who used his trampoline enclosure, and therefore it was in
public use. Moreover, while Curtis maintained control of the trampoline in
his backyard, he did not control access to it or make any effort to keep it
confidential. Because JumpSport concedes that if the Curtis enclosure is
considered to have been in public use, claims 16 and 40 of the ’207 patent
are invalid, we thus affirm the court’s grant of the defendants’ motion for
summary judgment.

Comments

Same old issue again: does the US public want (need?) a bright line test (eg. made available to at least one member of the public: EPO) that minimises litigation by giving legal certainty, or does it want (need?) a fuzzy test "what a reasonably diligent searcher might have been expected to find" that offers none, with the prospect of settling the issue in court?

The answer seems obvious when looking in from outside USA, but I guess it is nowhere near so clear, when considered from inside the USA. What do US readers say?